The Petitioner, a software, services, and internet technologies company, seeks to employ the Beneficiary as a marketing communications manager. It requests classification of the Beneficiary as an advanced degree professional under the second preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based "EB-2" immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Nebraska Service Center initially approved the petition, but subsequently revoked the approval on the ground that the instrument of payment for the filing fee was not honored by the financial institution, which left the filing fee unpaid. On appeal the Petitioner asserts that the filing fee was properly paid and that there was no basis in law for the Director to revoke the approved petition.
In visa petition proceedings the burden is on the petitioner to establish eligibility for the benefit sought. See Matter ofBrantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance ofthe evidence that the beneficiary is fully qualified for the benefit sought. See Matter ofChawathe, 25 l&N Dec. 369, 376 (AAO 2010). Upon de nova review, we will dismiss the appeal.
Law
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification (ETA Form 9089) from the U.S. Department ofLabor (DOL). See section 212(a)(5)(A)(i) ofthe Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(l)-(11) of the Act. Second, the employer files an immigrant visa petition (Form 1-140) with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
Section 205 of the Act, 8 U.S.e. § 1155, provides that the Secretary of Homeland Security may "for good and sufficient cause, revoke the approval of any petition." By regulation this revocation authority is delegated to any users officer who is authorized to approve an immigrant visa petition "when the necessity for the revocation comes to the attention of [USeIS]." 8 C.F.R. § 205.2(a). users must give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity to submit evidence in opposition thereto, before proceeding with written notice of revocation. See 8 e.F.R. § 205.2(b) and (c).
Analysis
The petition in this case was filed on February 9, 2021, and approved one week later, on February 16, 2021. On March 5, 2021, however, the Director sent a Notice of Intent to Revoke (NOIR) to the Petitioner, stating that u s e r s intended to revoke the approved petition because either (1) the check or money order submitted as payment was returned by the bank or financial institution, or (2) the credit card submitted as payment was not honored by the financial institution. The Director gave the Petitioner until April 7, 2021, to submit written evidence that the payment method was valid and honored by the financial institution.
The Petitioner did not respond to the NOIR. Therefore, on June 2, 2021, the Director issued a Notice of Revocation. The Director stated that users was revoking the Petitioner's immigration benefit as required by the federal regulation at 8 C.F.R. § 103.2(a)(7)(ii)(D) because the check, money order, or credit card submitted as payment of the filing fee was not honored by the financial institution.
The Petitioner filed a timely appeal on July 30, 2021, accompanied by a brief and additional evidence. Generally, the decision to revoke the approval of a petition will be affirmed, notwithstanding the submission of evidence on appeal, when a petitioner fails to offer a timely explanation or rebuttal to a properly issued notice ofintention to revoke. See Matter ofArias, 19 I&N Dec. 568, 569 (BIA 1988). We find that the Director issued the NOIR in this case for good and sufficient cause and that the Petitioner did not respond. Accordingly, we will dismiss the appeal.
In the alternative, however, we will consider the Petitioner's arguments on appeal. The Petitioner asserts that the Director committed factual error because the evidence shows that the requisite filing fee of $700 for the Form I-140 petition was paid with a check that was honored by Bank of America. The Petitioner also asserts that the Director committed legal error because the regulation cited as the basis for revocation, 8 e.F.R. § 103.2(a)(7)(ii)(D), does not grant users the authority to revoke an already approved petition. We will address each of these arguments in turn.
In support of its claim to have paid the $700 filing fee, the Petitioner submits a document scan which shows the processing by Bank of America of a $700 check (numberl from the Petitioner to the U.S. Department of Homeland Security (DHS), "captured" on Fehmarv 1), 2021, for payment to the U.S. Treas . The Petitioner also submits a letter froml IBank of America's ransaction Services, dated July 28, 2021, who states that check number i n in the amount of$700 was drawn on the Petitioner's account on February 11, 2021, and made payable to DHS. Supplementing these two documents submitted on appeal, the Petitioner p. 3 resubmits a company invoice dated December 2, 2020, submitted with the petition in February 2021, which recorded check number Ito DHS in the "paid amount" of $700.
None ofthe above documents, however, confirms that the Petitioner's check number Ipaid the filing fee ofthe instant I-140 petition. Neither the invoice, nor the letter from the Bank ofAmerica official, nor the document scan of the processed check specifically identifies the petition or the Beneficiary for which the filing fee was being paid. The check itselfis dated December 4, 2020, which preceded the filing of the instant petition by more than two months, and it lacks any identifying stamp or other marking from DHS or the U.S. Treasury confirming that it was actually received and deposited bytheGovernment. TherecordincludesarefundletterfromuserstotheBeneficiary,datedJune4, 2021, stating that because the Forrn I-140 petition "was Revoked for a bounced check" her concurrently filed adjustment of status application (Forrn I-485) was invalid and the filing fee for that application was being refunded.
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective evidence.Inconsistencies in the record Attempts to explain or reconcile such inconsistencies will not suffice without competent evidence pointing to where the truth lies. See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). For the reasons discussed above, the Petitioner has not reconciled the evidentiary inconsistencies concerning check number 5000135937, and what filing fee it was intended to pay.
As for the Petitioner's claim that the Director had no legal basis to revoke the approved petition under the regulatory provisions of 8 e.F.R. § 103.2(a)(7)(ii)(D), the Petitioner is correct only insofar as the authority to revoke does not derive from that regulation, which reads as follows:
(7)(ii) A benefit request which is rejected will not retain a filing date. A benefit request will be rejected if it is not: (D) Submitted with the correct fee(s). Ifa check or other financial instrument used to pay a fee is returned as unpayable because of insufficient funds, users will resubmit the payment to the remitter institution one time. Ifthe instrument used to pay a fee is returned as unpayable a second time, the filing may be rejected. . ...
Thus, the regulation at 8 C.F.R. § 103.2(a)(7)(ii)(D) provides for the rejection of petitions or applications that lack the requisite filing fee before they are adjudicated. The instant petition presents a different situation because the petition was adjudicated and approved before u s e r s determined that the filing fee was not paid. The regulation at 8 e .F.R. § 103.7(b) states that "USeIS fees will be required as provided in 8 eFR part 106," and the specific regulation in this case is 8 C.F.R.§ l06.1 (b) and (c), which reads as follows:
(b) Fees must be remitted from a bank or other institution located in the United States and payable in U.S. currency. . . . . (c) If a remittance in payment of a fee or any other matter is not honored by the bank or financial institution on which it is drawn: (1) The provisions of 8 C.F.R. § 103.2(a)(7)(ii) apply, no receipt will be issued, and if a receipt was issued, it is void and the benefit request loses its receipt date; and (2) Ifthe benefit request was approved, the approval may be revoked upon notice.....
As the regulation clearly indicates, if a filing fee check is not honored by the bank only after a petition is receipted and approved, as in this case, the petition is void, it loses its receipt date, and its approval may be revoked following notice to the petitioner.
After the instant petition was approved on February 16, 2021, USCIS gave the Petitioner proper notice of its intent to revoke the approval, in accordance with the requirements of 8 C.F.R. § 205.2(b), in the NOIR that was issued on March 5, 2021. Since the Petitioner did not respond to the NOIR, and provided no explanation for its non-response, the Director properly issued the Notice of Revocation, in accordance with the requirements of 8 C.F.R. § 205.2(c), on June 2, 2021. See Matter ofArias, 19 I&N Dec. at 569. While the regulation cited as the basis for the decision was not correct, the revocation itselfwas correct according to the applicable regulatory provisions at 8 C.F.R. § 106.1(b) and (c). Contrary to the Petitioner's contention, therefore, the Director had the authority under applicable regulations to revoke the petition's approval.
Conclusion
For the reasons discussed above the Petitioner has not overcome the grounds for revocation in the Director's decision. Therefore, we will dismiss the appeal. ORDER: The appeal is dismissed.